Don't let life imitate a soap opera

In an attempt by TV producers to create realistic televisual experiences, we often find soap opera storylines can be very close to the mark and that life can easily imitate art. In a recent Coronation Street storyline a main character made the decision to end his life. By not writing a will before his death, his estate did not automatically transfer to his family. If this was to happen in real life it would cause additional distress at a time of difficulty with a potentially costly outcome.

There are numerous benefits to making a will. But it tends to be the last item on our list, if on the list at all. As a Wills and Probate specialist, I have seen many instances where family disharmony has been caused when someone dies without leaving a will which sets out their wishes and beneficiaries. This can include issues such as guardians not being appointed for minors (children under 18), children inheriting at 18 and squandering their inheritance, and people benefitting under the will whom the deceased did not like or intend to benefit.

Problems can also be encountered where a “home-made” or simple will has been made by a person. I have seen cases where beneficiaries have subsequently been disinherited to the sum of £350,000 by a poorly drafted will. This is because people don’t know what they don’t know and wills are perceived as a simple document when in fact they are not. Errors can include the failure to appoint executors, failure to appoint guardians and the failure to distribute all of the estate. The final example will lead to the deceased’s estate being distributed under the laws of intestacy. This can also lead to the administration of the estate taking longer and being more expensive.

If you fail to make a will, the fact is you simply have no say as to who inherits your estate after your passing. The distribution of your estate will be decided by the Administration of Estates Act 1925 and not by you.

Your marital status also plays a significant role. If you are married or in a civil partnership, it is not guaranteed that such spouse will inherit all of your estate without a will. If you have issue (that is to say children, and / or grandchildren) then they may receive a proportion of your estate instead of your spouse.

In a situation where there is no will, intestacy rules will apply. If there is a spouse, then they will receive the first £250,000 (assuming the estate is valued at over £250,000), personal possessions and half of the remaining estate/assets. The issue will receive the other half equally on the statutory trusts at age 18 or earlier if they marry before the age of 18 (you may think that your children inheriting at the age of 18 is too young and in most cases in my experience I would endorse this).

Furthermore, your surviving spouse may have to bring a claim against your estate, if they deem that they have not received enough. This can cause family disharmony and difficulty.

The complexities don’t end there. If your estate is large enough, you could be causing an inheritance tax liability where there need not be one. If you have no spouse or issue, then the estate is divided between your family in accordance with the statute. You will have no say as to who this is and it can result in someone you don’t particularly like inheriting part of your estate.

“Common law” spouses have no legal entitlement under intestacy. They will receive nothing. Therefore, they would have to bring a claim (under limited circumstances) to receive any part of your estate. For example:

A was married to B and they split up in 2015 but did not divorce

A met C in August 2016 and they moved in together in August 2017

A and C had baby D in January 2018

A died in April 2018

In these circumstances, the beneficiaries under intestacy would be:

B - £250,000, personal possessions and half of the estate

D – remaining half at age 18

C - £0

In this situation, it would be fair to state the obvious unfairness. To resolve this, C would have to bring a claim against the estate which would be costly and risky.

Conclusion

According to recent surveys and information from the Citizens Advice Bureau, nearly two thirds of the British adult population do not have a will. If you don’t have a will and you have children, this means in the event of your demise, you are not appointing guardians for your minors / children. There are a whole host of issues and situations to avoid that can be easily rectified by creating a will. We recommend that everyone undertake a review of their estate and discuss creating a will with a solicitor.

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.